Murray v Gisborne District Council [2012] NZHC 553 (1 March 2012)

Last Updated: 28 March 2012

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2011-416-000223 [2012] NZHC 553

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF a decision made by the Human Rights

Review Tribunal dated 31 March 2010

BETWEEN J C MURRAY Plaintiff

AND GISBORNE DISTRICT COUNCIL First Defendant

AND PRIVACY COMMISSIONER Second Defendant

Hearing: 13 December 2011

Appearances: J C Murray in Person

D J O'Connor for First Defendant

C Walker for Second Defendant

Judgment: 1 March 2012

_{RESERVED JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Thursday, 1 March 2012 at 10:00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Elvidge & Partners, PO Box 609, Napier 4140.

Privacy Commissioner, PO Box 10094, The Terrace, Wellington 6143.

Copy to:

J C Murray, 98A Awahuri Road, Fielding 4702.

MURRAY V GISBORNE DISTRICT COUNCIL & OTHER HC GIS CIV 2011-416-000223 [1 March 2012]

[1] On 4 November 2011 the High Court at Gisborne accepted a statement of claim and notice of proceeding from Mr Murray for filing. By notice of date of hearing dated 9 November 2011, the High Court set the matter down for mention at at 9:30 am on Tuesday, 13 December 2011.

[2] On 25 November 2011 the Privacy Commissioner filed a statement of defence. On 29 November 2011 counsel for the Gisborne District Council (“Council”) filed an interlocutory application on notice to strike out Mr Murray’s claim together with an affidavit of the Chief Executive of the Council, Lindsay Ronald McKenzie, in support of the application.

[3] After receiving the Council’s application to strike out Mr Murray’s claim, the

Privacy Commissioner requested the Court, in a memorandum dated 12 December

2011, to treat her statement of defence as an application to strike out the proceedings against her as well, noting that r 15.1(d) of the High Court Rules permits the Court to dismiss the proceedings without any application being made.

Nature of claim

[4] The statement of claim is described as a judicial review. It seeks to review what is said to be the decision of the Chief Executive of the Council to proceed with a hearing in the Human Rights Review Tribunal on 15 March 2010. The statement of claim alleges that the decision to proceed with the hearing was taken by Mr McKenzie to absolve a Council employee from any wrongdoing and to discredit Mr Murray.

[5] The hearing in the Human Rights Review Tribunal had in fact been initiated by Mr Murray who was not satisfied with a decision of the Privacy Commissioner in relation to a complaint laid by him against the Council. The Privacy Commissioner had determined that the Council had not caused an interference with his privacy. The statement of claim also alleges that the Privacy Commissioner ignored fabricated evidence in making the determination.

[6] The claim filed in the Human Rights Review Tribunal by Mr Murray related to the non-disclosure of part of a Council internal memorandum. Notwithstanding the determination of the Privacy Commissioner that the Council was entitled to withhold the information from Mr Murray, on 8 February 2010, five weeks prior to the Tribunal hearing, the Council disclosed the entire memorandum to both Mr Murray and the Tribunal.

[7] On 15 March 2010, Mr Murray’s claim was heard before the Tribunal. On 31

March 2010 the Tribunal granted a declaration that the non-disclosure was an interference with the appellant’s privacy, but refused to award damages. The Tribunal said its decision was “a draw” between the parties.[1]

[8] On 30 April 2010, Mr Murray filed an appeal in the High Court at Wellington against the Tribunal’s decision. On 20 May 2010, the Council applied to strike out Mr Murray’s appeal. Williams J struck out Mr Murray’s appeal on 3 June 2010.[2]

[9] On 18 January 2011, Mr Murray applied to the High Court for leave to appeal the decision of Williams J dated 3 June 2010. Williams J dismissed Mr Murray’s application for leave to appeal on 30 March 2011. Williams J noted in his decision that “Mr Murray’s real objective in pursuing this matter has absolutely nothing to do with the issues raised in that appeal”. Williams J agreed with counsel that “enough was enough” and awarded costs against Mr Murray.[3]

[10] On 14 April 2011, the appellant applied to the Court of Appeal for leave to appeal the decision by Williams J dated 3 June 2010. The application was heard by the Court of Appeal on 14 June 2011. On 21 June 2011, the Court of Appeal

_{dismissed Mr Murray’s appeal and awarded costs against him.}[4]

[11] On 29 June 2011, Mr Murray applied to the Supreme Court for special leave to appeal the decision by the Court of Appeal. The Registrar refused to accept the appellant’s application for filing.

[12] On 8 July 2011, Mr Murray again filed a notice of appeal in the Court of Appeal against the decision by Williams J dated 30 March 2011 refusing his application for special leave to appeal to the Court of Appeal. At that stage, Mr Murray also added the Privacy Commissioner as a second respondent. On 12

July 2011, a Deputy Registrar at the Court of Appeal rejected Mr Murray’s notice of

appeal because his appeal had already been dismissed by the Court of Appeal.

[13] On 29 April 2011, the High Court sealed a costs order against Mr Murray in the sum of $3,800.89. On 30 June 2011, the Court of Appeal sealed a costs order against Mr Murray in the sum of $3,636.06. The sealed costs orders have been served on Mr Murray but he has failed to pay them.

Submissions

[14] The Council has applied to strike out Mr Murray’s claim on the basis that it discloses no reasonably arguable cause of action and is an abuse of process of the Court. The Council submits that the claim is an attempt to re-litigate matters already determined by the High Court and Court of Appeal. Alternatively, the Council seeks an order that the claim be stayed until Mr Murray pays the costs awards made by the High Court and the Court of Appeal in favour of the Council totalling $7,436.95. Further, the Council seeks an order that Mr Murray provides security for costs for his claim in this proceeding.

[15] As to the Council’s submission that Mr Murray’s claim discloses no reasonably arguable cause of action, the Council notes that it was Mr Murray who brought the claim against it in the Human Rights Review Tribunal and accordingly its Chief Executive, Mr McKenzie, did not make a decision to proceed with the Tribunal hearing. There was, accordingly, no decision made by the Council which is reviewable. The decision identified by Mr Murray does not come within the

definition of statutory power under ss 3 and 4(1) of the Judicature Amendment Act

1972.

[16] The Privacy Commissioner also submits that the statement of claim discloses no cause of action against her. She notes that Mr Murray’s claim about fabricated evidence appears to be based on his views about the Council’s actions in relation to allocation of a software contract with the Council and how it handled the subsequent dispute with him. However, this did not, and could not, form part of the Privacy Commissioner’s investigation as the wider context and history of Mr Murray’s dispute with the Council did not raise any issues under the Privacy Act. The sole question that the Privacy Commissioner had jurisdiction to consider was whether the Council had a proper basis to withhold information from Mr Murray that he had requested. She submits that Mr Murray’s claim therefore does not disclose any basis to judicially review the actions of the Privacy Commissioner. She also notes that the relief sought in the statement of claim does not refer to the Privacy Commissioner or seek any relief against her.

[17] Mr Murray submits that it was not his decision to go ahead with the Tribunal hearing. He notes that the Council had released the full memorandum only a matter of weeks before the Tribunal hearing. He submits that the lawyer for the Council could have said that there was no need for the full hearing but instead the Council allowed him to go ahead with it. He submits that the Council used the Tribunal hearing to “debase” him and the purpose of the judicial review proceeding was to clear his name. He wants the Council to admit that the employee’s evidence was perjured and that they acted on that perjured evidence. As to the costs awards, he acknowledges that he cannot pay them but submits that he walked into a trap with the High Court and the Court of Appeal and asks why the Registrar of both Courts did not advise him of his liability or potential liability for costs.

Discussion

[18] In the Attorney-General v Prince & Gardner[5] the Court of Appeal set out the proper approach to a strike out application. It stated:

A striking out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (Lucas and Sons (Nelson Mail) Ltd v O'Brien [1978] 2 NZLR 289, at pp 294-5; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314, at pp 316-7); the jurisdiction is one to be exercised sparingly, and only in a clear case where the court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZCA 37; [1983] NZLR 37, at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR

641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside

v Sheffield, Young & Ellis).

[19] These criteria were endorsed by the Supreme Court in Couch v Attorney- General.[6] The same criteria apply to an application to strike out a judicial review proceeding.[7]

[20] I am of the opinion that the statement of claim filed by Mr Murray does not disclose any reasonably arguable cause of action nor is it capable of amendment. An immediate difficulty for Mr Murray is that the Chief Executive of the Council did not exercise a statutory power when the Council appeared as respondent to Mr Murray’s claim in the Human Rights Review Tribunal. Statutory power has a specific meaning. It is defined in s 3 of the Judicature Amendment Act 1972 as follows:

Statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate—

(a) To make any regulation, rule, bylaw, or order, or to give any notice or direction having force as subordinate legislation; or

_{(b) To exercise a statutory power of decision; or}

(c) To require any person to do or refrain from doing any act or thing that, but for such requirement, he would not be required by law to do or refrain from doing; or

(d) To do any act or thing that would, but for such power or right, be a breach of the legal rights of any person; or

[(e) To make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person:

[21] Mr McKenzie was not exercising a statutory power of decision, in that he was not exercising a power or right conferred by or under any Act or rules to make a decision affecting the rights, powers, privileges, immunities, duties or liabilities of Mr Murray. Nor was Mr McKenzie making an investigation or inquiry into the rights, powers, privileges, immunities, duties or liabilities of Mr Murray when counsel appeared for him at the Tribunal hearing. At the hearing the Council merely called evidence and made submissions. Judicial review is only available against someone exercising a statutory power or other power of a public nature. The decision to take or defend civil proceedings before a Court or Tribunal is one that will not normally be open to judicial review.

[22] The untenability of the cause of action alleged in the statement of claim against the Council is demonstrated by the orders which are sought by Mr McKenzie. In the statement of claim he seeks the following orders:

1) The Council to disclose the invoices from O’Connor as a sole barrister and from O’Connor as an employee of Elvidge and Partners. These invoices must total the figures in Exhibit D.

2) The Council to issue a complaint against O’Connor to the Law

Society for the recovery of the money in Exhibit D.

3) Mr. Birt give a full account of the events surrounding the suicide of

Tony Dixon the former principal of the software company Origen

Technologies Ltd of Tauranga.

This will reveal what followed from Mr. Birt ousting me from the Council –

Tony’s father took steps to sue me

The incoming owners of Origen refused to consider paying for my software or entering into a joint venture.

Lawyers forced me to sell my home in Ponsonby

Therefore it can be judged whether the legal fees paid to O’Connor merited

the defence of Mr. Birt.

4) The Human Rights Review Tribunal rescind the decision of

31 March 2010.

[23] Mr O’Connor is the lawyer who acted and continues to act for the Council. Mr Murray seems to be concerned about the legal fees paid to him by the Council. Mr Birt is the Council employee, whose actions a number of years earlier appear to be the genesis of Mr Murray’s complaints. The Human Rights Review Tribunal is not a party to the proceedings.

[24] Mr Murray’s wider grievances, which are well illustrated by the orders he seeks, are well outside the jurisdiction of the Privacy Commissioner and could not form part of her inquiry into whether or not Mr Murray’s privacy interests had been breached. They also do not relate in any way to the Human Rights Review Tribunal decision.

[25] In all the circumstances, Mr Murray’s statement of claim is struck out as disclosing no reasonably arguable cause of action. The Council is entitled to costs against Mr Murray as approved by the Registrar. The Privacy Commissioner does not seek costs.

.....................................

Woolford J

---

[1] _{Murray v Gisborne District Council [2010] NZHRRT 7.}
[2] _{Murray v Gisborne District Council HC Wellington, CIV 2010-485-743, 3 June 2010.}
[3] _{Murray v Gisborne District Council HC Wellington, CIV 2010-485-743, 30 March 2011.}
[4] Murray v Gisborne District Council [2011] NZCA 282.
[5] _{Attorney-General v Prince & Gardner [1998] 1 NZLR 262 at 267.}
[6] _{Couch v Attorney-General [2008] NZSC 45 at [33] per Elias CJ and Anderson J.}
[7] Southern Ocean Trawlers Ltd v Director General of Agriculture & Fisheries [1993] 2 NZLR 53 (CA).